Preston Mitchell v Ronny Andrews

• Jurisdiction: Grenada
• Court: High Court (Grenada)
• Judge: Actie, J.
• Judgment Date: 02 December 2024
• Judgment citation (vLex): [2024] ECSC J1202-1
• Docket Number: CLAIM NO. GDAHCV2009/0410

Between:

Preston Mitchell (In his Capacity as Executor of the Estate of Clarine Adlyn (Also Spelt Adeline) Mitchell, Deceased)

Claimant/Applicant

and

Ronny Andrews

Defendant/Respondent

Before:

The Hon. Mde. Justice Agnes Actie High Court Judge

CLAIM NO. GDAHCV2009/0410

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

(CIVIL)

Appearances:

Ms. Aloytha Thomas for the Claimant/Applicant

Mr. Kristopher Ross-Fields for the Defendant/Respondent

RULING

Actie, J.

1 The judgment creditor seeks permission pursuant to Part 46.3 of the CPR (Revised Edition) 2023 edition to issue a writ of execution upon a judgment given in excess of six years. The application is refused for the reasons outlined below.

2 In a claim filed on 30 ^th September 2009, Clarine Mitchell claimed against the defendant for damages for trespass and for the removal of a chattel house erected on a lot of land situate in Belmont. In a judgment dated 27 ^th May 2016, Theodore J. (Ag) ordered the defendant to deliver up vacant possession of the property to Clarine Mitchell no later than the 31 ^st December 2016. Clarine Mitchell died testate on 21 ^st June 2017, appointing Preston Mitchell as the executor of her Will. A grant of probate of the said Will was obtained on 20 ^th July 2022.

3 Preston Mitchell Qua Executor in a notice of application filed on 26 ^th January 2024 seeks permission to issue execution of the judgment pursuant to Rule 46.3. The application is opposed by the judgment debtor.

Law and Analysis

4 Rule 46.2 of CPR 2023 provides that:

“A writ of execution may not be issued without permission if –

• (a) any party against whom a judgment or order was liable to be enforced is no longer liable to have it enforced against it;

• (b) any statutory provision requires the permission of the court to be obtained before judgment is enforced;

• (c) 6 years have elapsed since the judgment was entered;

• (d) the goods against which it is wished to enforce the judgment or order are in the hands of a receiver or confiscator appointed by the court;

• (e) the judgment creditor is no longer entitled to enforce the order;

• (f) the judgment debtor has died and the judgment creditor wishes to enforce against assets of the deceased person which have passed to that person's personal representatives since the date of the order or the judgment was made subject to conditions.” (emphasis mine)

5 Rule 46.3 under which the application is made requires the application to be supported by evidence on affidavit, and where six (6) years have elapsed to give reasons for the delay.

6 The applicant in his supporting affidavit states that the delay was not intentional as time escaped him. He further states that the main reason for the delay was that (i) he did not receive the necessary legal advice in a timely fashion to determine the way forward in dealing with his mother's estate, (ii) due to the Covid-19 pandemic which restricted the movement of people, and (iii) through his own inadvertence.

7 Mr Kristopher Ross-Fields, counsel for the judgment debtor, in submissions in opposition states that the starting point for the court on such an application is that the lapse of six (6) years is typically a sufficient reason to refuse the application unless the applicant can prove that the reasons for the delay take the applicant's case outside of the ordinary. Counsel contends that the applicant's affidavit is lacking in detail to take the applicant's case outside of the ordinary. He contends that the judgment debtor would be greatly prejudiced by enforcement of the judgment at this late juncture.

8 Part 46 of the CPR confers a discretionary jurisdiction to grant an extension of time for a writ of execution after six years. However, the rule is silent on the factors to be taken in consideration when exercising that discretion. Each matter is usually determined on a case-by-case basis on its particular facts and circumstances.

9 In Patel v Singh 1 Peter Gibson LJ said:

“But it seems to me to be impossible to ignore the fact that, whereas in the six-year period the judgment creditor was entirely free to issue execution on his judgment in any way he chose, that freedom has been removed after the expiry of the period and it is left to the court to decide whether to allow the judgment creditor to proceed with one form of execution, the issuing of a writ of execution”.

10 The court both in Duer v Frazer 2 and Patel v Singh 3, confirmed that:

“The lapse of six years is, in itself, enough to refuse the creditor permission to enforce the judgment. In general, the court will not extend time beyond six years unless there are exceptional circumstances, and it is demonstrably just to do so”.

11 The applicant in the case at bar is seeking execution of a judgment entered almost eight (8) years ago. It is the evidence that the original claimant who is the

applicant's mother died on 21 ^st June 2017, almost 6 months after the date by which the judgment debtor was ordered to vacate the property

12 The burden rests on the judgment creditor to satisfy the court that it is demonstrably just to exercise its discretion to extend the time for the writ of execution. The authorities in Duer v Frazer and Patel v Singh established that...